Florida lawmakers take aim at local schools in mask standoff

Move by state to punish defiant school districts over mask mandates faces legal hurdles
House Speaker Chris Sprowls, R- Palm Harbor, far left, and  Senate President Wilton Simpson, R-Spring Hill, far right, listen as Gov. Ron DeSantis delivers his address during the joint session of the Florida Legislature at the Capitol in Tallahassee on Tuesday, March 2, 2021.
House Speaker Chris Sprowls, R- Palm Harbor, far left, and Senate President Wilton Simpson, R-Spring Hill, far right, listen as Gov. Ron DeSantis delivers his address during the joint session of the Florida Legislature at the Capitol in Tallahassee on Tuesday, March 2, 2021. [ IVY CEBALLO | Times ]
Published Aug. 27, 2021

TALLAHASSEE — The culture wars playing out in school districts across Florida over mask mandates could shift into the Florida Legislature as conservative Republicans contemplate a special session to expand the law that allows them to suspend or remove superintendents that have defied the governor’s order prohibiting mandatory face coverings to protect against COVID-19.

The State Board of Education this month directed Education Commissioner Richard Corcoran to consider a series of punitive measures for districts that imposed mask mandates without an opt-out clause for parents. Among the penalties was legislative action. And Gov. Ron DeSantis on Wednesday echoed his warning that school districts that defy his executive order banning masks “will face consequences” because “they are thumbing their nose at the rights of parents.”

“You can’t go above the law and take away people’s rights and that’s what they’re doing,’’ DeSantis said at a news conference announcing a monoclonal antibody infusion site in The Villages, for people being treated for COVID-19. “They’re taking away parents’ rights, and there will be consequences.”

Related: Judge rules for parents in Florida school mask case, a blow to DeSantis

DeSantis has not specified what the consequences will be. But legal hurdles to enacting penalties on the rebellious school districts continue to mount, and any attempt to change the law to give DeSantis broader latitude to suspend local officials would likely face a constitutional challenge as school districts and Democrats fight what they view as a continuation of Tallahassee’s encroachment into local affairs.

For school officials, the stand-off is about more than whether superintendents will have their salaries docked or lose their jobs. It also marks the escalation of 20-year fight over local control of public education, and the slow but steady shift in power to the state Department of Education.

“How far does state government want to be involved in the local level decision-making?,” asked Bill Montford, CEO of the Florida Association of School District Superintendents. “I happen to think local control is better and I would think a lot of my Republican colleagues would agree with me.”

Montford, a former Leon County superintendent of schools and former Democratic state senator from Tallahassee, warns that the debate has far broader implications because the question of who will have the ultimate control, authority and responsibility over the education of students in Florida is “one of the most serious issues facing government in Florida.”

“The governor talks about how parents should have a choice but at what point does a parent not have a choice?’’ he asked. “There is a limit to that.”

The issue of a parent’s right to decide how to keep their children safe played out in a Leon County courtroom this week as parents sued Gov. Ron DeSantis for overreaching when he ordered the Department of Health to ban mask mandates in schools.

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On Friday, Judge John Cooper ruled the state could not enforce the governor’s order, and concluded that a “school district which adopts a policy, such as a mask mandate, is acting within discretion, given to it by the Legislature in the Florida Parents Bill of Rights.”

The measure is expected to be appealed by the state, where officials are expected to continue to pursue penalties against school districts.

The Board of Education last week sidestepped a decision about how to punish school board members in Alachua and Broward counties who voted to defy the governor and instead issued orders directing Corcoran to determine what sanctions the state could use.

The orders did not say the salaries of superintendents would be withheld, as originally threatened. But Corcoran said the penalties against school board members were the “initial consequences” for the districts’ “blatant” violation of the state’s mask rules and laws.

Now, some legislators and their staff are considering empowering the governor to remove superintendents from office for violating the law. Florida law currently allows a governor to remove a county constitutional officer, such as an elected superintendent, from office, but the law does not allow him to suspend or remove an appointed superintendent — including those who serve in 9 of the 10 districts that have mandated masks in schools. Among them, only Leon County elects its superintendent.

In counties where the schools chief is appointed by the school board, the job of removing or disciplining them falls to the elected school board members.

When reporters asked DeSantis to explain what he was referring to when he spoke of “consequences” for school officials, he ignored the question and repeated his belief that masks don’t make enough difference in school-age children to be required. He suggested, without citing any evidence, that “they’re much more likely to get infected in the community and at home than they are in the classroom.”

For the governor to suspend defiant, appointed school officials, legislators would have to change the law. They are scheduled to convene committee meetings in September and could use that time to call a special session. The regular 60-day session begins in January.

Goal: Punish the defiant

Last week, the State Board of Education directed Corcoran, a former state House speaker, to identify ways to change the law to penalize school districts that imposed mask mandates without an opt-out clause for parents.

Board Chair Tom Grady ordered Corcoran to “take all legal steps to enforce” the state’s rules and laws and asked the Florida Department of Education to make recommendations to the Legislature on amending laws as necessary to give the board enforcement authority over areas where it currently has none.

Grady’s request for legislative action was broad. He said it should include recommendations that take into account “the extent this board lacks the best enforcement mechanisms to fully implement the constitution and the statutes and the rules of the Department of Health and the Department of Education and other state agencies.”

The directive came after the seven-member board determined that Broward County and Alachua County school boards had violated the state’s “parents’ bill of rights” and a Department of Health rule that says any school mask mandate must include an opt-out for parents.

Senate President Wilton Simpson, R-Trilby, would not comment on whether he would support the governor removing a superintendent from office for defying his emergency order, because “the Senate is tasked with judging the merits of the suspension,’’ said Katie Betta, Simpson’s spokesperson.

And neither he nor House Speaker Chris Sprowls, R-Palm Harbor, would answer whether they would support a special session to change the law to allow the governor to suspend the appointed superintendents.

Sen. Manny Diaz, Jr., a Hialeah Gardens Republican and vice chair of the Senate Appropriations Subcommittee on Education who works for Doral College, said he would support a special session to enact new penalties on local school officials who have defied the governor. Instead of pointing to violations of the “parents bill of rights” invoked by the DeSantis administration, he invoked another law passed by lawmakers this year.

He said the governor’s authority to impose the ban on mask mandates came from a sweeping new law that allows the governor to invalidate local emergency measures put in place during the pandemic — including mask mandates, limitations on business operations, and shuttering of schools.

“We cannot paint the topic of safety and education with a broad stroke,’’ Diaz, a former assistant principal at Hialeah-Miami Lakes High School, said in a text message. “The law passed this session is clear — mask mandates, vaccine mandates and even shutdown mandates defy state law in that they infringe on the rights of students and parents, while also restricting the educational environment with a one-size-fits all approach.”

He told the Times/Herald last month that “at end of the day, local governments are appendages of the state” and this week said that superintendents “are elected to protect students, parents and educators, but they must do so in the confines of the law.

Constitutional hurdles

But several legal experts say that if the Legislature attempts to pass a law to remove appointed superintendents, it will violate the state Constitution and continue the steady stream of legal challenges to legislative action.

Ed Guedes, a constitutional lawyer with the South Florida law firm of Weiss Serota, was one of the attorneys who successfully represented cities and nearly 80 municipal officials in a lawsuit against the state alleging that a statute that gave the governor the authority to remove a municipal official for voting in favor of gun restrictions violated the Florida Constitution.

The court ruled that the Legislature couldn’t expand the governor’s authority to remove an official from office just because they voted in favor of a local gun regulation but could remove the official if they could be shown to have committed a crime. The attorney general and governor’s office did not challenge the ruling by then-Leon County Circuit Court Judge Charles Dodson.

Guedes now argues that if legislators attempt to expand the governor’s powers to allow him to remove appointed superintendents, the same constitutional law will apply.

“The Legislature cannot come along and suddenly bestow new powers on the Office of the Governor, not when the Constitution specifically speaks to what those removal powers are,’’ Guedes said.

For Sen. Gary Farmer, a Lighthouse Point Democrat and trial attorney, the constitutional arguments may not be enough to dissuade his Republican colleagues in the Legislature from passing new laws aimed at punishing defiant school districts. He believes their goal is to shift control over schools from local communities to the state and this provides another opportunity.

“They’re using this as a as an excuse to expand their superintendent removal power, which they believe will then give them more control over these school districts and give them the influence to further the privatization education,’’ Farmer said.

Schools face ‘logistical nightmare’

For superintendents, the state-imposed restrictions have left them with fewer tools to manage the COVID-19 crisis, as cases continue to surge across the state.

“They are living through a logistical nightmare,’’ said Brian Moore, general counsel for the Florida Association of School Superintendents. “Our worst fears for last year are being realized this year.”

Districts that had hundreds of COVID cases all last year are matching those numbers in just weeks now that classes have resumed, he said.

“It’s the same story from district to district,’’ Moore said.

“They’re having skyrocketing quarantine numbers, bus driver shortages, teacher shortages, substitute teacher shortages, food service worker shortages,’’ he said. “Whether they’re short because they don’t have enough employees or because half of them are out on quarantine or with COVID, they’re piecing together what they can to keep schools open the best they can every single day.”

Askew asked the question first

The limits on the governor’s reach when it comes to punishing appointed school officials is decades old.

In 1974, then-Gov. Reubin Askew asked the Florida Supreme Court to produce an advisory opinion to answer the question of whether he had the authority to suspend an appointed superintendent, specifically in Orange County. The court concluded that he did not.

The court noted that when voters approved the 1968 Constitution, it gave communities the local option to have the school board employ the superintendent, or make him a constitutional officer subject to suspension by the governor. The court concluded that if both the governor and school board had the ability to remove a superintendent from office, it “would be an intolerable situation” that would subject the “superintendent to the tenuous position of having to please ‘two masters’,” creating “confusion and lack of direction.”

DeSantis has already considered removing an appointed superintendent.

In February 2019, at a news conference on the eve of the anniversary of the 2017 shooting at Marjory Stoneman Douglas High School, DeSantis said that he had received feedback from many who “have had grave concerns” about the school board and superintendent because of the way they handled the safety protocols.

“I’ve been asked to potentially suspend the superintendent, just as I did the sheriff,” DeSantis said then. “The problem is that I don’t have the authority to do that for an official who was appointed.”

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